Ferro v. Lewis

WILNER, Judge. Maryland Code (1992 Repl.Vol.), § 21-1306(b) of the Transportation Article, prohibits a person from operating or riding on a motorcycle “unless the individual is wearing protective headgear that meets the standards established by the Administrator [of the Motor Vehicle Administration].” Section 21-1306(d) provides that the Administrator: “(1) May approve or disapprove protective headgear ... required by this section; (2) May adopt and enforce regulations establishing standards and specifications for the approval of protective headgear ... and ⁵⁹⁶ (3) Shall publish lists of all protective headgear ... that he approves, by name and type.” (Emphasis added.) A person who violates § 21-1306(b) is guilty of a misdemeanor and is subject to a fine of up to $500. See § 27-101(b) of the Transportation Article. The Administrator adopted a regulation pursuant to § 21-1306(d), which we shall describe later in this opinion, but the Administrator has never published a list of approved protective headgear by name and type.

In fact, at least in recent times, the Administrator has not formally approved or disapproved of any particular headgear. Appellee, a motorcyclist who had received a number of traffic citations for operating a motorcycle without approved protective headgear, filed an action in the Circuit Court for St. Mary’s County against the Administrator, the Superintendent of the Maryland State Police, and the Sheriff of St. Mary’s County, seeking (1) a declaratory judgment that § 21-1306, as applied by the Administrator, is invalid and unenforceable and that the regulation itself is invalid, and (2) interlocutory and permanent injunctions prohibiting appellants from enforcing § 21-1306. On February 28, 1997, after an evidentiary hearing, the court filed an opinion, which we shall regard as a declaratory judgment, declaring that “the Administrator must publish lists of all protective headgear that he approves, by name and type” and that “[i]f the Administrator fails to so publish, the statute shall remain unenforceable.” At appellants’ urging, the court stayed the issuance of an actual injunction pending the appeal that they promptly filed. We granted certiorari prior to proceedings in the Court of Special Appeals and, for the reasons stated in this opinion, shall reverse the judgment of the circuit court.

LEGAL AND FACTUAL BACKGROUND In September, 1966, Congress enacted the National Traffic and Motor Vehicle Safety Act of 1966 ( Pub.L. No. 89-563 ). That Act, as since amended, is codified at 49 U.S.C. ⁵⁹⁷ §§ 30101—30169. Section 103(a) of the Act (§ 30111(a)) directed the Secretary of Commerce (since changed to the Secretary of Transportation), by appropriate order, to establish Federal motor vehicle safety standards. Each such standard, the section continued, shall be practicable, shall meet the need for motor vehicle safety, and shall be stated in objective terms.

The Act makes clear the force and effect of the standards adopted pursuant to its provisions. 1 Section 30103(b) makes the Federal standards preclusive. With an exception allowing a State to impose a higher performance standard with respect to equipment obtained for its own use, § 30103(b)(1) provides: “When a motor vehicle safety standard is in effect under this chapter, a State or a political subdivision of a State may prescribe or continue in effect a standard applicable to the same aspect of performance of ... motor vehicle equipment only if the standard is identical to the standard prescribed under this chapter.” (Emphasis added.) Section 30103(b)(2) allows a State to enforce a standard “that is identical to a standard prescribed under this chapter.” With exceptions not relevant here, § 30112 prohibits anyone from manufacturing for sale, selling, offering for sale, introducing or delivering for introduction into interstate commerce, or importing any item of motor vehicle equipment manufactured on or after the date an applicable Federal motor vehicle safety standard takes effect unless the item complies with the standard. Section 30115(1) requires manufacturers and distributors of motor vehicle equipment to furnish to their dealers, at the time of delivery, a certification, in the form of a label or tag on the item or on its container, that the item conforms to all applicable Federal motor vehicle safety standards; and (2) prohibits a person from issuing the certificate if, in exercising reasonable care, the person has reason to know that the certificate is false or misleading in a material respect. ⁵⁹⁸ Shortly after passage of the National Traffic and Motor Vehicle Safety Act, the Maryland General Assembly enacted a statute regulating the operation of motorcycles. See 1967 Md. Laws, ch. 437, enacting new § 195 to Md.Code (1957; 1966 Supp.), Article 66íé.

As introduced, the bill included a provision that “[n]o person shall ride on a motorcycle unless he is properly wearing a safety helmet approved by the Department [of Motor Vehicles].” That provision was deleted during the legislative process but, in modified form was enacted the next year. By 1968 Md. Laws, ch. 665, the General Assembly added new § 195(g) to provide that “[n]o person shall drive, or ride on as a passenger, a motorcycle ... unless he is wearing a firm and durable protective helmet or headgear, and either safety goggles or a face shield, approved by the Commissioner of Motor Vehicles.” New § 195(h), also enacted by the 1968 statute, made a violation of § 195(g) a misdemeanor, punishable by a fine of between $10 and $100. In 1970, the State motor vehicle laws were rewritten. 1970 Md. Laws, Ch. 534. Section 11-1306, which replaced § 195(g) and (h), provided, in relevant part: “(a) No person shall operate or ride upon a motorcycle unless he is wearing protective headgear which complies with standards established by the commissioner.

(d) The commissioner is hereby authorized to approve or disapprove protective headgear and eye-protective devices required herein, and to issue and enforce regulations establishing standards and specifications for the approval thereof. The commissioner shall publish lists of all protective headgear and eye-protective devices by name and type which have been approved by him.” 2 The 1970 Act was the product of a Commission, chaired by former Baltimore City Judge S. Ralph Warnken, to study and revise the State motor vehicle laws. The Commission made a ⁵⁹⁹ report, which included draft legislation completely rewriting Article 66]i, to the Legislative Council following the 1969 Session of the General Assembly. 3 After review by a Special Legislative Committee, the Commission bill, without significant change, was introduced as a Legislative Council Bill. Section 11-1306 survived as drafted by the Warnken Commission.

See Maryland Motor Vehicle Laws Revision, Md. Dept. of Motor Vehicles (1969) at 389; see also Reports and Proposed Bills To The General Assembly of 1970, Legislative Council of Maryland (1970), Vol. 1, at 905. Although two seemingly significant changes were made by the new law, no mention of them appears in either the Commission or the Special Legislative Committee report. Indeed, with an exception not relevant here, the Commission’s comment on § 11-1306 is that it is “[similar to existing law.” The first change went to the basic substance of the law. The 1968 statute required riders to wear “firm and durable protective” headgear approved by the Commissioner, thus (1) making clear that rags, bandannas, and other soft coverings would not suffice, and (2) implying some duty on the part of the Commissioner to approve types or categories of headgear.

The 1970 law required riders to wear headgear complying with standards established by the Commissioner. Although subsection (d) authorized the Commissioner to approve or disapprove headgear, as well as to promulgate regulations establishing standards for approval, it did not, on its face, require that the headgear itself be approved. To the extent there was an implicit duty under the 1970 law, it was a duty to approve standards against which particular headgear could be compared, rather than a direct duty to approve the headgear itself. The second important change, of course, was the ⁶⁰⁰ requirement that the Commissioner publish lists of approved headgear.

In late 1972 or early 1973, the Motor Vehicle Administration (MVA) adopted a regulation governing, among other things, motorcycle helmets and headgear. 4 See State Motor Vehicle Administration Regulation 11.02.08. Section .01 of the regulation stated that no person may use, loan, borrow, sell, offer, or distribute any protective helmet for use by operators or passengers of motorcycles unless “they are of a type” approved by the Administrator. Section .02 adopted as the minimum standard for such helmets the United States of America Standards Institute (ANSI) Specifications for Protective Headgear for Vehicular Users Z90.1-1966. Section .04 adopted as the test procedures for protective helmets or headgear the procedures described in those same ANSI specifications.

Other sections directed that the helmets contain certain labeling and reflectorized surfaces. Section .07 required that an application for approval be accompanied by a copy of a laboratory test report from a nationally recognized, independent testing laboratory certifying that the complete helmet met the required specifications. The application was to be submitted to the American Association of Motor Vehicle Administrators in Washington, D.C., which, in turn, would furnish the Maryland MVA with a Confirmation Certificate of Approval. The Maryland Administrator would then determine “when conditions of approval have been met and a Maryland Certificate of Approval will be issued.” Although it does not appear that any list of approved helmets or headgear was ever published by MVA, as required ⁶⁰¹ by the 1970 statute, the regulation did at least adopt a standard and contemplate the approval of specific helmets and the issuance of a certificate of approval for each helmet approved.

Unfortunately, the standard adopted by MVA was about to become unusable. In August, 1973, the Federal Department of Transportation, through the National Highway Traffic Safety Administration, promulgated the first Federal Motor Vehicle Safety Standard dealing with motorcycle helmets (Standard 218, 49 C.F.R. § 571.218 ). See 38 Fed. Reg. 22390 (August 20, 1973). That standard established (1) minimum performance requirements for helmets designed for use by motorcyclists, including requirements relating to impact attenuation, penetration, retention system, configuration, and projections; (2) required tests and testing procedures and conditions for determining whether headgear met the performance requirements; and (3) labeling requirements.

Although the introductory comment to the regulation indicates that the ANSI standard adopted by the Maryland MVA was considered, it appears that, in some respects at least, the Federal standard departed from the ANSI standard. To that extent, by virtue of the preemption provision of the Federal statute, the ANSI standard became unusable. 5 The technical requirements embodied in the Federal standard, both substantive and relating to testing, have undergone a number of changes over the years (see 39 Fed. Reg. 3554 (January 28, 1974); 45 Fed.Reg. 15179 (March 10, 1980); 53 Fed.Reg. 11280 (April 6, 1988); 53 Fed.Reg. 12528 (April 15, 1988)), but the labeling requirement has remained essentially the same. As currently codified, § 5.6.1 of the regulation ( 49 C.F.R. § 571.218 ) requires that “each helmet” be permanently and legibly labeled, “in a manner such that the label(s) can be read easily without removing padding or any other permanent part” with certain prescribed information, including “[t]he symbol DOT, constituting the manufae- ⁶⁰² turer’s certification that the helmet conforms to the applicable Federal motor vehicle safety standards.” At some point—when is not clear—MVA amended the 1972 regulation to make a number of largely stylistic changes, but, until 1992, the substance of the State regulation remained essentially the same. 6 The substantive and testing standards, at least facially, remained those set forth in the obsolete ANSI Standard Z90.1-1966, and helmets were presumably approved by MVA based on Confirmation Certificates issued by the American Association of Motor Vehicle Administrators. With the adoption of the Transportation Article in 1977, as part of the ongoing code revision effort, former § 11-1306 of Article 66/6 became § 21-1306 of the Transportation Article and assumed the format and the relevant language in the present law.

In 1979, the General Assembly, by changing one word in § 21-1306, cut back significantly on the helmet requirement. It substituted the word “minor” for the word “person” and thereby imposed the requirement of wearing protective headgear meeting the standards established by the Administrator only upon operators or passengers who were minors. 1979 Md. Laws, ch. 746. No other change was made to the statute, thus leaving in place the 1970 requirement that MVA publish a list of approved helmets. In 1992, the Legislature reversed its 1979 decision and again made § 21-1306(a) applicable to all individuals. 1992 Md. Laws, ch. 1.

Although, as part of the Act, the Legislature added to the law a number of new provisions dealing principally with the effect of noncompliance, it left intact the existing provisions dealing with approval and publication. The enactment of the 1992 statute prompted an evaluation by MVA of the existing regulation. A memorandum from MVA’s Associate Administrator for Field Services to the Administrator noted, some nineteen years after the fact, that ⁶⁰³ ANSI Specification Z90.1-1966 had been replaced by Federal Motor Vehicle Safety Standard (FMVSS) 218 and was no longer used. He recommended a number of changes in the MVA regulation to bring it into conformity with the Federal standard, among which were (1) amending the existing requirement that the Administrator approve (or disapprove) helmets to state that the Administrator “will identify the standards helmets must meet”; (2) deleting the requirement that the Administrator affix an approval label to approved helmets, as the Federal standard “already does this”; (3) deleting approval procedures, as “FMVSS 218 already establishes these standards and all manufacturers must comply if they want to sell their helmets in the United States”; and (4) deleting the authority of the Administrator to withdraw approval, for the same reason—“[t]his section is not necessary because [National Highway Traffic Safety Administration] already does this.” Most significantly, for purposes of this case, the Associate Administrator indicated: “The law, Section 21-1306,c,3, requires the Administrator to ‘publish lists of all protective headgear ... that he approves, by name and type.

Changing the regulations to the FMVSS standards may eliminate the need to publish these lists because all helmets must have the DOT label affixed to them. These are the only helmets that may be sold in the United States.” Andrew Krajewski, the current MVA Division Director in charge of the Motorcycle Safety Program who worked on the revision of the regulation, testified in the circuit court that, once the MVA officials became aware of Federal Standard 218, they concluded that it was unnecessary for MVA to approve or disapprove specific helmets, as no helmet not in compliance with that Federal standard could be sold in the United States. He stated that MVA had attempted to compile a list of approved helmets but was unable to do so. Some manufacturers either never responded or responded inadequately to MVA’s request for a list of approved helmets.

Some helmets, he said, were not on any list but nonetheless complied with the Federal standard. MVA was concerned ⁶⁰⁴ about publishing an incomplete list and, in the end, opted not to publish any list but to suggest through education programs that buyers simply look for the DOT label, required by the Federal standard, before buying or using a helmet. Indeed, a brochure later published by MVA informs the public that “[h]elmets that meet the FMVSS No. 218 standard will have a permanent decal, containing the letters DOT (Department of Transportation).” In conformance with those views, the regulation was amended, effective March 15, 1993. 20 Md. Reg. 515 (March 5, 1993); see also 19 Md. Reg. 2343 -45 (December 23, 1992). The existing definition of “Protective helmet or headgear” was retained: “a device primarily intended to protect the upper part of the wearer’s head against a blow or impact.” The provision that no protective helmet be worn unless it is “of a type approved by the Administrator,” was reworded to state that no such helmet could be worn unless it met “the standards established by the Administration.” The regulation then adopted, by reference, FMVSS Standard 218 as “the minimum standards for helmets required to be worn by operators and passengers” in accordance with § 21-1306, citing 49 C.F.R. 571.218 (1991). 7 Section .02(C) of the regulation adopted as the test procedure for helmets or headgear the test procedures described in FMVSS 218.

The existing provisions dealing with approval procedure—the application to the American Association of Motor Vehicle Administrators and a Confirmation Certificate of Approval issued by that Association— were deleted in favor of a provision that “[t]he Administration shall accept all helmets which comply with the requirements of FMVSS 218, Motorcycle Helmets 49 C.F.R. § 571.218 (1991).” That regulation, as amended in 1993, remains in effect. ⁶⁰⁵ DISCUSSION Appellee’s Position and The Court’s Ruling MVA raises a number of procedural and substantive issues, which need to be viewed not only in the context of the declaratory ruling but also in light of appellee’s challenge to the law and regulation. Distilling the allegations in appellee’s pleading, as supplemented by the evidence presented in the circuit court, his complaint is essentially this: The statute (§ 21-1306) prohibits persons, on pain of a criminal conviction, from riding on a motorcycle unless they are wearing protective headgear that meets the standards established by the Administrator. The statute authorizes the Administrator to approve (or disapprove) particular headgear as well as to adopt and enforce regulations establishing standards for the approval of protective headgear, and it directs that the Administrator publish lists of headgear that he or she approves. The Administrator, through COMAR 11.13.05, has adopted FMVSS 218 as the standard for approval, a decision mandated by the preemption provision of Federal law ( 49 U.S.C. § 30103 (b)).

The Administrator has not chosen, however, to approve or disapprove any particular headgear or to publish a list of headgear that complies with FMVSS 218, and thus as well with COMAR 11.13.05 and § 21-1306. Instead, the regulation states that the Administration “shall accept all helmets which comply with the requirements of FMVSS 218.... ” Appellee contends, and was able to establish in court, that neither he nor Mr. Krajewski could reliably determine, from merely reading FMVSS 218 and without conducting engineering tests beyond their ability to conduct, whether a particular helmet complies with that standard. Appellee’s position is that FMVSS 218, as written, is a highly technical standard directed at manufacturers of protective headgear and is not intended to be applied, and cannot practicably be applied, by ordinary laypersons in deciding which helmets are acceptable and which are not. It is this dilemma, he urges, that makes the statute, coupled with the COMAR regulation, impermissi-bly vague and unenforceable.

He offered other evidence ⁶⁰⁶ indicating that some helmets containing the DOT label do not, in fact, comply with FMVSS 218, and that a consumer cannot, therefore, rely on the existence of that label as an assurance that the helmet meets the requirements of the COMAR regulation. Unless MVA in some way determines which headgear is acceptable and publishes a list of that headgear, the law, in his view, is impermissibly vague and, as a result, effectively prohibits people from riding on motorcycles. The circuit court essentially accepted that argument. It found “as an established evidentiary fact” that “merely because a motorcycle helmet bears the symbol ‘DOT’ does not mean that the helmet has actually passed the tests required by COMAR 11.13.05.02.” It also concluded that, although MVA has adopted a standard, “[c]itizens of ordinary intelligence cannot know how to use FMVSS 218.

People of ordinary intelligence cannot reasonably be expected to know what FMVSS 218 commands of them.” The court